Fernandez-Cervantes

MEMORANDUM **

Ignacio Fernandez-Cervantes appeals from the sentence imposed following his guilty plea conviction for unlawful reentry after deportation, in violation of 8 U.S.C. § 1326 (a). He contends that his prior state burglary and narcotics convictions did not qualify as aggravated felonies and should not have been used to enhance his sentence under U.S.S.G. § 2L1.2(b)(l)(A). Because the parties are familiar with the facts, we do not discuss them here.

I. The burgla/ry conviction

Fernandez-Cervantes’ state burglary conviction does not qualify as a “burglary” offense. In Ye v. INS, 214 F.3d 1128 (9th Cir.2000), we adopted the Supreme Court’s definition of burglary for the purpose of sentence enhancements: “unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” Id. at 1132 (citing and quoting Taylor v. United States, 495 U.S. 575, 598-99 , 110 S.Ct. 2143 , 109 L.Ed.2d 607 (1990)). The state statute under which Fernandez-Cervantes was convicted, California Penal Code § 459, criminalizes the act of “[ejvery person who enters any ... building ... with intent to commit grand or petit larceny or any felony.” The state…